Alabama Litigation Lawyer & Attorney : Lightfoot Franklin & White : Appellate, Alabama Supreme Court (Supreme Court of Alabama)

The Court of Civil Appeals reviewed several points of post-judgment and appellate practice before reaching the heart of this case. Hoping it will prove useful to readers here, we follow the court’s long approach.

The Court of Civil Appeals upheld a judgment against Robert Price. Acting pro se, Price sought a rehearing and, days later, moved the appellate court to “set aside” the adverse judgment under Rule 60(b). Price argued that “newly discovered evidence” showed that the trial judge should have recused himself. This motion, made on March 12, 2008, pointed to a 1999 affidavit in which the trial judge had recommended the plaintiff as a fit candidate for admission to the Alabama State Bar. The Court of Civil Appeals treated Price’s motion as a request for permission to file a Rule 60(b) motion in the trial court, and granted that permission.

Price filed his 60(b) motion in the circuit court and asked the trial judge to recuse himself. The trial court denied this motion. Price appealed and, days later, filed a separate mandamus petition challenging the trial court’s decision.

The Court of Civil Appeals first noted that the denial of the 60(b) motion was appealable. The mandamus petition, however, was not proper. After the circuit court denied the 60(b) motion, there was nothing left pending for it to do. The 60(b) denial was therefore final, not interlocutory, and could not be reviewed by mandamus. Nonetheless, the appellate court explained that, “in certain circumstances,” it could elect to treat a petition for mandamus as an appeal. Because the recusal issue was at the heart of both Price’s appeal and his mandamus petition, the court elected to treat the petition as an appeal.

The appellate court then analyzed Price’s 60(b) motion. Price had not specified which subsection of Rule 60(b) his motion was brought under. The Court of Civil Appeals “decline[d] to construe” Price’s motion as one under 60(b)(2), seeking relief from judgment based on “newly discovered evidence.” Such a motion, the court explained, comprehends proof “which was not known at time of trial and could not have been discovered by due diligence in time to move for a new trial.” Price had not alleged or argued that he had only recently discovered the 1999 affidavit on which his recusal argument rested; nor had he claimed that he could not have discovered it sooner. His motion therefore was not viable under Rule 60(b)(2).

The court then considered the motion under Rule 60(b)(6). This subsection allows relief from judgment for “any other reason justifying relief” than those listed in previous parts of Rule 60(b). The appellate court set out various criteria governing this rule. “Rule 60(b)(6) is an extreme remedy and relief” thereunder “will be granted only in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief.” (Quotation omitted.) A party moving under this rule must show that he did “everything reasonably within his power to achieve a favorable result” before the challenged judgment became final. Decisions under Rule 60(b)(6) lie in the trial court’s discretion. Indeed, “a strong presumption of correctness” attaches to a trial court’s decision under Rule 60(b)(6). The object of appellate review in such a case is not the underlying judgment, but the decision on the 60(b)(6) motion itself.

The appellate court affirmed the denial of Price’s 60(b)(6) motion. Such a motion must be brought “within a reasonable time.” Yet Price had made no allegation or argument showing that his motion was timely under this criterion. The record showed, to the contrary, that Price had not moved within a reasonable time. Price had acquired the 1999 affidavit that supported his motion much earlier in the litigation — fully six years before he filed his Rule 60(b) recusal motion. His motion therefore was not filed “within a reasonable time” and the circuit court did not err in denying it. The judgment of the circuit court was accordingly affirmed.

(The Court of Civil Appeals also upheld the circuit judge’s underlying decision not to recuse himself. This decision, too, came down to a question of timeliness; specifically, Price’s failure not to seek recusal before the court entered judgment.)

An employee sued his employer for workers’ compensation benefits. Before deciding the core questions of whether the worker was disabled and what benefits he might be owed, the circuit court ordered the employer to provide the worker with a panel of physicians under Ala. Code § 25-5-77(a) (1975). This order was entered on March 29, 2007.

The trial court entered its (nominally) final decision on October 19, 2007. The court found that the worker was permanently disabled and awarded him “all past due . . . and future benefits.” The court did not specify the amount of this award.

The employer then filed two cases in the Court of Civil Appeals. It filed a petition for writ of mandamus on November 20, 2007, to review the March 29 order concerning the panel of physicians. Then, on November 29, 2007, it filed an appeal from the October 19 judgment awarding benefits.

The Court of Civil Appeals turned both of these aside. The mandamus petition, it noted, was filed well outside the 42-day period in which such petitions are considered presumptively timely under appellate Rules 21(a)(3) and 4(a)(1). In such a case, Rule 21(a)(3) requires the petitioner to show “good cause” for the late filing. The employer had not made this showing. The appellate court recognized that the “passage of time, without more” does “not necessarily, by itself,” condemn a late petition to dismissal. Here, however, there was “more.” The worker had been prejudiced by the employer’s delay in filing. Specifically, the worker was forced to “seek, obtain, and presumably pay for his [own] pain-management treatment” in the relevant period. The appellate court also indicated that the issues raised by the mandamus petition were encompassed by the employer’s direct appeal. The employer thus had “an opportunity for review by appeal,” which was “another factor to consider in determining whether good cause exists for allowing an untimely mandamus petition.” The Court of Civil Appeals thus denied the petition as late.

The employer’s direct appeal, for its part, was dismissed as being from a non-final judgment. Recall that the trial court’s October 19 order — which awarded the worker disability benefits — had “fail[ed] to specify a sum certain for” those benefits. This made the judgment non-final. The appellate court explained:

Where the amount of damages is an issue . . . the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.

Accordingly, the October 19 order “was not a final judgment that [would] support an appeal.” The Court of Civil Appeals dismissed the employer’s appeal.

(The employer had also couched its direct appeal alternatively as a petition for mandamus. The Court of Civil Appeals rejected this tack. Because the employer would have an adequate remedy by appeal, once a final judgment was entered, mandamus would not lie. The court thus denied the alternative petition.)

The juvenile court granted custody of a child to the  great grandmother.  The mother sought a petition for writ of mandamus from the Circuit Court challenging that ruling.  The Circuit Court denied the mandamus.  The mother then filed a petition for writ of mandamus with the Court of Civil Appeals seeking review of the Circuit Court's order.   The Court of Civil Appeals dismissed the petition as untimely.

The Alabama Supreme Court held that, regardless of whether the petition was timely, the mandamus petition was due to be dismissed.  The proper vehicle for the review of a pendente lite order is an appeal, not a mandamus.  Slip. Op. p. 8.  Because she had an adequate remedy by way of appeal, and because a mandamus cannot be used as a substitute for an appeal, the mandamus petition was due to be denied.

This is an insurance coverage case. The plaintiff moved to compel the production of certain documents. The circuit court granted that motion in January 2006. The next month, before turning over the documents, the defendant sought a protective order shielding the same material from production. The trial court denied this motion on June 20, 2006. Twenty-nine days later, on July 18, the defendant petitioned the Supreme Court of Alabama for a writ of mandamus.

The plaintiff moved to dismiss the petition as untimely, claiming that it had been filed outside the 42-day “presumptively reasonable” deadline of Ala. R. App. P. 21(a)(3). The petition, the plaintiff argued, was not really directed at the June 20 denial of a protective order. Rather, it was directed at the January 2006 order which had originally compelled production. By nominally directing its petition to the June 20 order, the plaintiff continued, the defendant was trying to extend its deadline and create another opportunity to challenge the discovery ruling. Measured (as in the plaintiff’s view it should be) from the January 2006 order, the petition was late.

The state’s high court disagreed. The timeliness of the petition was correctly measured from the trial court’s disposition of the motion for a protective order. In fact, even though the circuit court had already granted a motion to compel covering the same information, precedent required the defendant to seek a protective order before it could challenge the discovery ruling by mandamus. The Court explained:

Requiring the party allegedly burdened by discovery to request a protective order from the trial court before seeking mandamus relief with this Court allows the trial court an opportunity to address its alleged error before a party seeks mandamus relief from an appellate court to correct the alleged error.

A mandamus petition filed before the circuit court had granted or denied a protective order would have been “premature.”

The parties below were embroiled in the discovery stages of a workers' compensation action.  During the course of discovery, the petitioner requested that the respondent produce a certain videotape.  The respondent objected. At a status conference, the trial court ordered that the respondent would be allowed to take the petitioner's deposition before it was required to produce the videotape.  Subsequently, the petitioner filed a "motion to vacate or modify" the trial court's order.  The trial court denied the motion on May 15, 2007. The petitioner filed her petition for a writ of mandamus on June 20, 2007. 

The court held that it had no appellate jurisdiction.  The petition was filed 68 days after the trial court entered the order allowing the respondent to depose the petitioner. The motion to alter or vacate did not work to extend the presumptively reasonable time within which the petitioner could have filed her petition for writ of mandamus.  The court pointed out that "unlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus."

Although a mandamus petition not filed within the presumptively reasonable time period may be considered if accompanied by a statement of the circumstances constituting good cause for the untimeliness, the petitioner did not include such a statement.  Accordingly, it was dismissed.

In this workers compensation case, the trial court denied Onyx's motion to dismiss or, in the alternative, to transfer the action from Tuscaloosa County to Chilton County.  The trial court denied the motion on October 26, 2006.  Onyx then moved the trial court to reconsider that order.  The motion to reconsider was denied on January 12, 2007.  Onyx petitioned the Alabama Supreme Court for a writ of mandamus on February 21, 2007.  The Supreme Court transferred the petition to the Court of Civil Appeals. 

The dispositive jurisdictional question for the court was whether Onyx's petition for a writ of mandamus was timely filed.  The court first noted that a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus.  In this case, the petition for a writ of mandamus was filed 40 days after the denial of Onyx's motion to reconsider, and 118 days after the trial court first denied Onyx's motion to dismiss or, alternatively, to transfer.

The court rejected Onyx's argument that the trial court granted its motion to reconsider in part.  Although the ruling on the motion to reconsider did clarify the trial court's basis for denying the motion to dismiss or transfer, it did not grant the relief that Onyx sought, so could not be considered to have granted the motion in part.  

The court further contrasted the situation in this case from one in which a trial court withdraws its previous order and then enters a new order providing the same relief as the first order.  In those situations, the date the second order is entered is the date from which the period in which a party may petition for a writ of mandamus begins to run. Here, however, there was no indication that the trial court withdrew its first order.

As a result, the petition for a writ of mandamus was not filed within the presumptively reasonable  42 days. In such situations, the filing of a statement of circumstances constituting good cause for the appellate court to consider the petition notwithstanding its untimeliness is mandatory.  As Onyx failed to submit such a statement, the court was required to dismiss the petition.